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People v. Gamboa-Jimenez.

2022 COA 10. No. 18CA1516. Evidence—Expert Testimony—Drug Courier Profile Testimony—Fourth Amendment—Investigatory Traffic Stop.

January 13, 2022

A state trooper was parked along I-70 about 10 miles from the Utah border when he observed a driver commit a traffic infraction. The trooper conducted a traffic stop during which he discovered that the car was owned by a third party. He also noticed, among other things, that the driver’s behavior was suspicious, and there were several air fresheners and several cell phones plainly visible in the car. After issuing a verbal warning, the trooper began walking back to his patrol car. He then turned and asked the driver if there was anything illegal, like narcotics, in the car, and if he could search the car. The driver answered no to both questions. The trooper then instructed the driver and defendant, who was the passenger, to exit the vehicle so he could walk his drug-detection dog around it. This led to discovery of a package that contained just over a kilogram of cocaine in a compartment below the front passenger seat carpeting.

Defendant was arrested and charged with possession of a controlled substance, possession with intent to distribute a controlled substance, and a special offender designation for having introduced or imported more than 14 grams of cocaine into Colorado. Before trial, he moved to suppress the evidence recovered from the car, arguing it was obtained in violation of the Fourth Amendment. The trial court denied the motion after a hearing, and defendant was convicted as charged.

On appeal, defendant argued that the court erred by allowing the trooper to offer drug courier profile testimony at trial. A drug courier profile is “an array of behaviors and characteristics that detectives believe indicate a person may be smuggling illegal narcotics.” While such profiles may have some utility, they are inadmissible as substantive evidence of a defendant’s guilt. Here, the prosecution’s case was presented almost entirely through the trooper. The court allowed him to testify as an expert witness to describe how defendant met the profile based on his subjective observations without reference to any objective, widely recognized drug courier profile. Therefore, it was error to admit the testimony. Further, this error so undermined the fundamental fairness of defendant’s trial as to cast serious doubt on the reliability of the judgment of conviction.

Defendant also argued that the trial court should have granted his motion to suppress the evidence recovered from the car. Defendant did not dispute that the trooper had reasonable suspicion to pull the car over for a traffic infraction nor argue that the trooper took too long to investigate the infraction. Rather, he contended that the trooper did not develop additional reasonable suspicion during his investigation of the infraction to support his instructing the men to get out of the car. However, based on the facts and the transcript of the suppression hearing, the trooper had reasonable suspicion of criminal activity to justify detaining the men beyond the time it took to investigate the underlying traffic infraction. Therefore, the trial court did not err in denying the suppression motion.

The order denying the motion to suppress was affirmed. The judgment of conviction was reversed and the case was remanded for a new trial.

Official Colorado Court of Appeals proceedings can be found at the Colorado Court of Appeals website.

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